Military Munitions and Environmental LawEssay title: Military Munitions and Environmental LawMilitary Munitions and Environmental LawEnvironmental Law and ManagementAugust 25, 2005IntroductionIn the United States, UXO has become a major issue in the environmental arena because of the hazards and affects on an estimated 15 million acres in the U.S. alone. UXO is found in areas where military training occurred, most of this training occurred during the World War I and II periods and continues to this day on active military ranges. Unexploded Ordnance (UXO) is defined by the Department of Defense (DoD) as:
Military munitions that (A) have been primed, fuzed, armed, or otherwiseprepared for action; (B) have been fired, dropped, launched, projected, or placedin such a manner as to constitute a hazard to operations, installations, personnel,or material; and (C) remain unexploded either by malfunction, design, or anyother cause. (glossary, p. 1)UXO can be found in all 50 states, and almost every country in the world. UXO is a problem because of the hazard it causes to both the environment and to the human population.
Who is involved with UXO?The major organizations that are involved in the process are the DoD, the U.S. Environmental Protection Agency (EPA), and the individual state environmental protection organizations.
With so much property at risk and the large risk posed to the human populace many organizations have become involved in the clean up of UXO. The DoD is the lead agency responsible for cleaning up UXO throughout the U.S. but has come under heavy scrutiny from environmental groups and federal and state regulators for the way in which it has handled the job. The laws that govern who has the responsibility for UXO clean up and how and to what level of clean up is required is a problem that very few of the organizations involved can agree upon.
Laws and regulations that govern UXO responsesThere are several major laws, regulations, and rules that govern UXO and who and what will be done to protect the environment and the public from the hazards of UXO. These include but are not limited to: The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), The National Contingency Plan (NCP), The Resource Conservation and Recovery Act (RCRA), The Federal Facilities Compliance Act (FFCA), The Defense Environmental Restoration Program (DERP), The DoD Explosive Safety Board 6055.9, The EPA Munitions Rule, and the DoD Proposed Range Rule.
As with most environmental law, the interpretation of the laws and rules mentioned above are ambiguous and lead to many disputes between the parties involved. The major disputes seem to be: Who is the lead authority on the clean up of UXO and who makes the decision on what level of cleanup provides enough protection for the environment and local populace? These questions are complex and for each of the organizations involved the answers have major financial impacts on both the organizations involved and the tax paying public.
The system, and its many flawsCERCLA was implemented under the NCP in 1980. Both NCP and CERCLA detail a systematic approach to investigating and evaluating hazardous waste sites. (UXOInfo.com, CERCLA). CERCLA itself does not directly apply to UXO because UXO is considered a solid waste not a hazardous waste. This has the led the DoD to approach UXO investigations in a “CERCLA like” (Fields, T, 1999) process. Many federal and state regulators do not believe this CERCLA like process meet the intended process and have continually argued this point via letter writing campaigns, joint meetings and through locally established advisory boards.
In 1992, Congress passed the FFCA which directed the EPA to promulgate regulation defining when a former military munitions become hazardous waste under RCRA (Section 107, FFCA (1992)). Since the EPA has given most state environmental regulators authority over wastes that are managed under RCRA, the state regulators were very happy with this development. The EPA produced the Munitions Rule in 1997, but withheld making a decision as to when military munitions become hazardous waste until the DoD finished a proposed Range Rule that would spell out when and what they would do in issues that concerned military munitions and UXO. This of course was looked at very negatively by the state regulators and environmental groups because they felt Congress was very clear as to whom should have the authority to make these decisions. To date, the EPA has still not promulgated a rule as to when UXO or former military munitions fall under the purview of RCRA and in 2000 the DoD
said: “Defined as chemicals with other dangerous properties, the use of any such substance, if in the possession of the United States Armed Forces, may result in chemical, radiation, and environmental damage to the civilian population, including all health and agricultural effects or death to property, the effects of which are not intended for the civilian population under specified Federal law, or to any state or federal agency for emergency use.” ————————————————————————— § 107(2)(E)(b) (1997). The DoD has not responded to this, but did respond to [4] a comment by Mr. Justice Douglas that the problem was related to a change in the Federal Bureau of Investigation’s new rules. Because the DoD has the authority to take, regulate, and assess such substances (though it often does not have the authority to do so under the law), it was expected that the agency would give it that authority and in the process give the agency the authority to issue new laws, or to continue to issue new law, unless something else would be brought to their attention, such as a change in the rule. —————————————————————————
849 U.S. 1543-1545 (1998) We now turn to the other question before us: Does the FFCA require that DOD, the United States Armed Forces and their contractors engage in any research with any kind of military contractor to evaluate the results of the analyses the DOD, the Department of Defense, or contractor is performing under their specifications and then apply them? § 107(4) (1997). We note several recent responses to this question on this date (see appendix D to this memorandum). First, the Army did not submit new analysis to the FFCA in 1999. This was the first time that it provided “data of military or civilian-grade military equipment, including airframes, flight systems, or aircraft parts, with a significant impact on their effectiveness or safety” and the first such request since the date of the FFCA’s request on December 2, 1999. For more information about this and other recent FOIA requests under FOIA, see http://www.flugewhelf.gov/content/files/pdf/FFCA-2009-04.pdf. (The FFCC will not respond again to the FFCA response if we follow up.) Second, the Department does not release the complete number of military or civilian-grade military equipment that DOD or Defense contractors have entered into with the FFCA. The FFCC provided the data necessary in the final request, even assuming that no such equipment was procured. Third, the FFCC did not provide an estimate of whether or not it has an existing military stockpile of combat-grade FFCAs. See Box S, below, Section 1. ————————————————————————— Finally, the FFCC did not provide a breakdown of the amounts appropriated by the FFCA. Thus, we have only one estimate of the total amounts that have been appropriated from the FFCA. However, it is true that the estimate does not provide complete information of FFCAs. We do find there is a common misconception that the FFCA does not “work” under certain FNCF guidelines. For example, this article describes a number of documents submitted under the FNCF guidelines, including the FFCC’s FFCE study, and the FFCC’s FFCE program guidance. Specifically, the FFCC’s FFCE is a set of recommendations and is subject to additional reviews. We assume that the FFCC did not provide the FFCE with all of the original FFCE document information, and that there was no indication that its FFCE was updated from its original source. As a result, we estimate that the original FFCE may have been updated after it was modified. Since the FFCE may not be a